Institutionalizing Counter-Terrorism

Bernard Finel argues that we have done a poor job of formalizing rules to deal with the fight against international terrorists.

Few, even today, question the legitimacy of the U.S. campaign to remove the Taliban. But has this case set a broader precedent? And if so, what are the parameters of this precedent. Does any country unilaterally have the right to engage in regime change if they are struck by a terrorist attack launched from another country? Must the victim demonstrate that the host country is actually complicit in the attack in some way? Must the victim seek out some sort of collective legitimization before resorting to military action? Can an unwilling host country avoid retaliation if it can demonstrate that it is trying to eject the terrorist organization.

This is not an academic exercise. Rather, these issues reflect fundamental challenges in current U.S. counter-terrorism policy. The United States has relied on targeting killings of AQ operatives in numerous countries. Is this policy legitimate? Could the Chinese, for instance, legitimately target Tibetan activists in the United States by claiming that those activists were inciting violence in China? What are American rights vis-à-vis AQ bases in Pakistan. Does the Afghan precedent suggest that the United States could legally engage in regime change in Pakistan in retaliation? If not, why not?

As a practical matter, the answer to each of these questions is that countries can do whatever they want so long as they can get away with it. The United States and China will have more latitude in these matters than, say, Turkey.

But it’s more complicated than that. As Finel’s colleague, Jim Ludes, points out
there is value in establishing rules ahead of time and then following them.

If you believe the conflict will endure for decades, it makes sense that you would seek to institutionalize, both domestically and internationally, the legal authorities and procedures for prosecuting this war. That was the genius of the 1947 National Security Act, the creation of NATO, the United Nations, the World Bank, and the complex of international institutions and laws that helped us win the Cold War in 1989.


We are, at our core, a nation of laws. If our laws aren’t adequate to the challenges at hand, then they need to be revised, but they can not—and must not—be ignored. Nor can we afford to let terrorists go free. Our concern over due-process is not simply about the rights of detainees, it is about preserving our identity, defending our way of life, and defeating the terrorists.

Indeed. While there’s some short-term advantage to the ad hoc, make-it-up-as-you-go approach that the Bush Administration has taken, it’s damaging in the longer term. Not only does it undermine our moral authority in trying to hold others to the rule of law but it’s problematic on the domestic front, too. Those who have been perfectly happy to trust Bush to do what he felt best to protect us will likely not be so sanguine if he’s succeeded by a President Obama.

FILED UNDER: Law and the Courts, Terrorism, United Nations, , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. John425 says:

    New Rule-effective immediately. Don’t take any prisoners!

  2. Wayne says:

    What is legal and not legal is a misleading statement. There are treaties and standard practices but no legal bindings between countries unless those countries agree to it. I leave that discussion for another day.

    I would agree that in the long run it is better for the US to state your standards and stick to them. Unfortunately few are willing to do it in a way that would work. They only want to state the nice part of rules and not the bad one. Yes it not nice to spy but not spying would be foolish. Does this mean we if we catch a spy, we should say “no big deal we do it too so no retribution”? That would be foolish. We have to look after our own interest just like other countries look after theirs. Should that mean anything goes? No. The U.S. should state we will treat you fair until you don’t treat us fair. As long as they do then we should keep our standard even if it hurts. However if the other country doesn’t hold up their end then we are allowed to play dirty too.

    As for the terrorist example, if Pakistan is doing a good faith effort to impede terrorist camps in their county then we shouldn’t invade. They may not do as much as we would like but a good faith effort is enough. Iran doing nothing to impede terrorist camps in their country or worst yet supporting them is justification to attack them. If the U.S. have a terrorist group in the U.S. and did nothing about it then another country taking action would be understandable. That country should be weary of retaliation for that action as well. That just the way it is and pretending otherwise is unwise.

  3. brainy435 says:

    Yeah, if only we had previously-agreed upon rules that clarified whether or not Saddam had fulfilled his obligations under the cease-fire or how to judge ones actions during a war to help protect civilians. If only we had established those things before the EEEVVIIILL W had done whatever the hell he wanted, I’m SURE all the sanctimony of the past 5 years would have been avoided.

    Can you tell I’m wringing my hands?

  4. Saddam was clearly in violation of U.N. Security Council Resolutions as well as obligations under the Non-Proliferation Treaty, brainy435… so I am not sure what your point is. Indeed, it was those violations of international legal obligations that made up a big part of the Bush Administration’s case for war.

    Wayne… I simply don’t agree that things are too complex to formalize rules of conduct. Terrorists clearly do not deserve to be treated as simple prisoners of war, for instance. But that is an argument for a new framework, not for a simply throwing ones hands up and saying that everything has to be ad hoc. What I find frustrating is that many people don’t seem to understand the danger of not formalizing things at some point. We need to be able to wage a sustainable campaign against the jihadist threat, but for it to be sustainable it ultimately needs to be institutionalized. We knew we needed to spy on the Soviets after WW2… we didn’t just send a few guys to do it, we created the CIA. We knew we’d need to help defend Europe… we didn’t just deploy troops, we signed a formal treaty. Not only does it create a legal basis for our actions, but it forces our leaders to forge a national consensus.

  5. Wayne says:

    You have some good points. However anyone who thinks everything has been ad hoc don’t know what they are talking about. The tactics and strategy for fighting Unconventional warfare, militarily and politically, has been in development for many decades. Bush has it much more define than what we had in the 90’s but I would agree that we have a long way to go. The biggest problem I see is that we can’t do it without getting mud and blood on our hands and the politician and most of the public are too squeamish to go there. It reminds me of those who want to eat hamburgers but don’t want to kill any cattle.

    Remember we ad hoc with having troops in many places in Europe after WWII until we were able to come up with formal treaties and it still changes every so often.

  6. brainy435 says:

    Bernard, my point is exactly that: Saddam was clearly in violation of the UN resolutions, some 12 or more resolutions if I recall correctly, as well as violations of the cease-fire but people still call this war “illegitimate,” “illegal” or other fantastical nonsense.

    Same with the Geneva Conventions: We don’t owe anyone fighting out of uniform and/or in a way that is designed to place civilians at risk anything more than a quick execution. Yet many unhinged people want to grant these animals full constitutional privileges. For an example, just read some of Mr. Knapps rantings.

    The only lesson people seem to have learned in the last few years is that if they complain loudly enough they can safely ignore any fact that is damaging to their argument.